A-24566, OCTOBER 9, 1928, 8 COMP. GEN. 170

A-24566: Oct 9, 1928

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DIVISION OF - GASOLINE TAX WHERE AN EMPLOYEE OF THE UNITED STATES IS TRAVELING ON OFFICIAL BUSINESS IN HIS PRIVATE AUTOMOBILE AND IS ACCOMPANIED BY A PERSON OTHER THAN AN EMPLOYEE OF THE UNITED STATES. WAS ACCOMPANIED BY A PERSON NOT IN THE EMPLOYMENT OF THE UNITED STATES. YOU REQUEST TO BE ADVISED AS TO THE PROPER PROCEDURE FOR THE COLLECTION FROM THE STATE OF ONE-HALF OF THE STATE TAX WHICH WAS REIMBURSED TO THE EMPLOYEE. MISSISSIPPI IS THAT A STATE IS WITHOUT AUTHORITY TO IMPOSE A TAX ON GASOLINE SOLD TO THE UNITED STATES FOR ITS OFFICIAL USE. THAT DECISION IS DECLARATORY OF A GENERAL PRINCIPLE WHICH HAS BEEN UNIFORMLY APPLIED. IF THE EMPLOYEE IN THIS INSTANCE HAD BEEN TRAVELING ALONE THE AMOUNT OF THE TAX PAID BY AND REIMBURSED TO HIM WOULD HAVE BEEN FOR COLLECTING FROM THE STATE.

A-24566, OCTOBER 9, 1928, 8 COMP. GEN. 170

TRAVELING EXPENSES, DIVISION OF - GASOLINE TAX WHERE AN EMPLOYEE OF THE UNITED STATES IS TRAVELING ON OFFICIAL BUSINESS IN HIS PRIVATE AUTOMOBILE AND IS ACCOMPANIED BY A PERSON OTHER THAN AN EMPLOYEE OF THE UNITED STATES, THE EMPLOYEE MAY BE REIMBURSED FOR ONE-HALF OF THE EXPENDITURES FOR GASOLINE EXCLUSIVE OF THE STATE TAX. REIMBURSEMENT OF THE STATE TAX MAY BE MADE TO SUCH EMPLOYEE.

THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 20, 1928, WITH INCLOSURES, TO THE EFFECT THAT AN EMPLOYEE TRAVELING ON OFFICIAL BUSINESS IN HIS AUTOMOBILE AND MAKING PURCHASES OF GASOLINE FOR WHICH HE SUBMITTED CLAIM FOR REIMBURSEMENT, INCLUDING THE STATE TAX ON THE GASOLINE, WAS ACCOMPANIED BY A PERSON NOT IN THE EMPLOYMENT OF THE UNITED STATES, AND THAT THE EMPLOYEE HAD BEEN REIMBURSED FOR ONE-HALF OF HIS EXPENDITURES FOR GASOLINE, INCLUDING ONE-HALF OF THE STATE TAX. YOU REQUEST TO BE ADVISED AS TO THE PROPER PROCEDURE FOR THE COLLECTION FROM THE STATE OF ONE-HALF OF THE STATE TAX WHICH WAS REIMBURSED TO THE EMPLOYEE.

THE PRINCIPLE OF THE DECISION OF MAY 14, 1928, OF THE SUPREME COURT OF THE UNITED STATES IN PANHANDLE OIL COMPANY V. MISSISSIPPI IS THAT A STATE IS WITHOUT AUTHORITY TO IMPOSE A TAX ON GASOLINE SOLD TO THE UNITED STATES FOR ITS OFFICIAL USE. THAT DECISION IS DECLARATORY OF A GENERAL PRINCIPLE WHICH HAS BEEN UNIFORMLY APPLIED. THEREFORE, IF THE EMPLOYEE IN THIS INSTANCE HAD BEEN TRAVELING ALONE THE AMOUNT OF THE TAX PAID BY AND REIMBURSED TO HIM WOULD HAVE BEEN FOR COLLECTING FROM THE STATE. BUT THE FEDERAL EMPLOYEE WAS NOT REQUIRED TO TAKE A PERSON OTHER THAN FELLOW EMPLOYEE OF THE GOVERNMENT ON AN OFFICIAL TRIP IN HIS PRIVATE AUTOMOBILE. THIS WAS FOR THE CONVENIENCE OF BOTH THE EMPLOYEE AND THE OTHER PERSON, AND IT HAS BEEN THE PRACTICE OF THE UNITED STATES TO REIMBURSE AN EMPLOYEE TRAVELING UNDER SUCH CIRCUMSTANCES WITH ONE-HALF OF THE COST OF EXPENDITURES THE BENEFITS OF WHICH CONTRIBUTED TO THE FURTHERANCE OF HIS OFFICIAL DUTIES BUT WERE SHARED BY THE EMPLOYEE AND THE OTHER PERSON. THE EMPLOYEE BY TAKING ALONG A PERSON NOT TRAVELING ON OFFICIAL BUSINESS OF THE UNITED STATES HAS COMPLICATED THE SITUATION, HOWEVER, BY INVOLVING THE QUESTION OF THE STATE TAX AND MAY NOT PLACE UPON THE UNITED STATES THE BURDEN OF UNDERTAKING TO OBTAIN FROM THE STATE A REFUND BASED UPON A DIVISION OF THE STATE TAX UNDER SUCH CIRCUMSTANCES. WHILE THE GOVERNMENT MAY PROPERLY REIMBURSE THE EMPLOYEE FOR ONE-HALF OF THE EXPENDITURES FOR THE GASOLINE AND OIL, IT DOES NOT FOLLOW THAT THE GOVERNMENT IS REQUIRED TO REIMBURSE THE EMPLOYEE ONE-HALF OF THE STATE TAX PAID ON THE GASOLINE. THE STATE TAX MAY IN THAT CONNECTION BE VIEWED AS INDIVISIBLE WHICH THE EMPLOYEE WILL BE REQUIRED TO BEAR HIMSELF, THE CONDITION BEING CREATED BY HIS OWN ACTION AND NOT BY FORCE OF THE TRAVEL ON GOVERNMENT ACCOUNT.

A REFUND FROM THE STATE SHOULD NOT BE DEMANDED IN THE PRESENT MATTER AND HEREAFTER EMPLOYEES WILL NOT BE REIMBURSED FOR ITEMS OF STATE TAX ON GASOLINE IN CONNECTION WITH DIVISION OF TRAVEL EXPENSES WHERE ACCOMPANIED BY OTHERS THAN THOSE TRAVELING AT GOVERNMENT EXPENSE.